Section 69-8-9.1 - Standard of evaluation of variances; effect of variances granted.
69-8-9.1. Standard of evaluation of variances; effect of variances granted.
A. A person affected by a rule adopted under the Mining Safety Act [69-8-1 NMSA 1978] may petition the inspector for a variance.
B. A variance of a mandatory safety standard may be granted upon a determination that:
(1) an alternative method of achieving the result of the standard or rule exists that will at all times guarantee no less than the same measure of protection afforded by the standard or rule; or
(2) application of the standard or rule would diminish the safety of the affected miners.
C. All variances granted pursuant to this section shall have only future effect.
D. The inspector shall fully investigate any proposed variance with the requesting mine operator and the respective representative of miners, or a reasonable number of miners that will be affected by the proposed variance. The proposed variance shall be posted at the mine when submitted to the inspector to ensure that all miners have the opportunity to review and make comments to the inspector. Investigation shall begin within ninety days of receipt of the proposed petition, and the inspector shall make a final determination no longer than one hundred eighty days from the receipt of the proposed petition.
E. A person affected by the final decision of the inspector may appeal to the board within thirty days of the inspector's final decision. The appeal shall be in writing and sent to the board's chair. The board shall review the appeal within ninety days and may hold a hearing. The board shall make a final decision regarding the variance request.
F. A person who is adversely affected by a decision of the board pursuant to this section may appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.